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West: When Is Communication not Communication?

Wednesday, January 17, 2018
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When is communication not communication? When it’s information.

Jeremy P. West

Labor Code Section 4062.3 describes the proper means by which parties are to communicate with and provide information to medical-legal evaluators. The statute sets forth different rules relating to how both information and communication are to be provided to the evaluator.

LC 4062.3 defines “information” as “[r]ecords prepared or maintained by the employee’s treating physician or physicians” or “[m]edical and nonmedical records relevant to determination of the medical issue.” However, what constitutes communication is not specifically defined in the statute.

LC 4062.3(e) requires all communications be served on an opposing party 20 days in advance of an evaluation. All subsequent communications are required to be served on the opposing party at the time the subsequent communication is sent to the evaluator.

The statute provides different rules for information that is to be sent to the evaluator. Information must first be sent to the opposing party 20 days in advance of the information being sent to the evaluator. The opposing party is given 10 days to object to the information being sent to the evaluator.

If the party objects within 10 days, the information is not to be sent. Unlike with communications, the statute makes no differentiation between information sent before an evaluation and information sent after an evaluation. Therefore, the requirement for 20 days’ notice to the opposing party would apply even if the initial evaluation has already taken place, such as when information is provided to an evaluator for preparation of a supplemental report.

Occasionally, applicant’s counsel will provide additional medical records or other information to an evaluator enclosed with a request for a supplemental report without first serving the defense 20 days before providing the information to the evaluator. Applicant’s counsel often believe that anything sent to the evaluator after the initial evaluation must be served only on the defense at the same time it is sent to the evaluator.

This is incorrect, as ALL information must be served on opposing counsel 20 days before sending it to the evaluator, regardless of whether it is before or after the evaluation. It is important for the defense to object when applicant’s counsel improperly provides information to the evaluator, as it is grounds for a replacement panel per 8 CCR 35(k) and may be grounds for a finding of contempt against applicant counsel, along with costs and attorney’s fees per LC 4062.3(h).

The recent Workers’ Compensation Appeals Board en banc decision in in Maxham v. CDCR (82 Cal. Comp. Cases 136) addressed whether an advocacy letter to a medical evaluator should actually be considered “communication” or “information.” At issue in the case were a series of advocacy letters sent to an agreed medical evaluator that included reference to various medical records. The issue presented in Maxham was whether the advocacy letters to an AME that reference medical information within the letters properly constitute “information” or “communication.

The Appeals Board found that an advocacy letter can “cross the line into ‘information’ if it has the effect of disclosing impermissible ‘information’ to the AME” even if the letter does not explicitly enclose impermissible information. Making reference to impermissible information or misrepresenting factual or legal issues can cause an advocacy letter to be considered “information.”

The board further held that a “communication” can actually “constitute ‘information’ if it contains, references or encloses (1) records prepared or maintained by the employee’s treating physician or physicians, and/or (2) medical and nonmedical records relevant to determination of the medical issues.”

In other words, if a request for a supplemental report contains reference to information that was not served on the defense 20 days before it was sent to the evaluator as required by LC 4062.3, the request for the supplemental report is also information and must also be served on defense counsel 20 days before it is sent to the evaluator. Applicant’s counsel cannot hide behind an advocacy letter to provide otherwise impermissible information to an evaluator.

Therefore, it is important to closely review all requests for supplemental reports and ensure that any information referenced in, or enclosed with, the request has been timely served by opposing counsel. It is also important to ensure that applicant’s counsel is not misrepresenting legal or factual issues, as this can also cause an advocacy letter to cross the line into information.

If the request for the supplemental reports was not served 20 days in advance and includes reference to, or encloses impermissible information or misrepresents legal or factual issues, make sure to object to preserve the right to a replacement panel and possible findings of contempt and the award of attorney’s fees.

Jeremy P. West is an associate attorney in Bradford and Barthel’s Redding office. This entry from Bradford & Barthel's blog appears with permission.

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